This week’s World Intellectual Property Organization Marrakesh Diplomatic Conference, anticipated to deliver an international treaty allowing visually impaired people wider access to books, is also an arena where different stakeholders hope to influence the debate. Civil society calls for a practical treaty that really works on the ground, while industry insists that safeguards to protect the integrity of the international copyright laws be included in the treaty.

WIPO members are in Marrakesh, Morocco this week to negotiate an international treaty on exceptions and limitations to copyright for blind and visually impaired persons.

For the TransAtlantic Consumer Dialogue (TACD), “this Treaty is not about balance but instead about correcting the enormous, immoral and historic imbalance between blind persons who are deprived access to culture and education and a publishing industry that already has many laws that protect it, between most sighted persons who can access millions of books and the visually impaired who have been deprived of many of the benefits of the information technology revolution,” the representative said in his opening statement.

“Over the past few months,” he said “we have heard from industry representatives that allowing blind persons to have easy access reading material on a non-profit basis could ‘severely weaken international copyright law’. Even some EU and US representatives have been carried away by this neurotic paranoia of potential piracy that has never been substantiated by any empirical evidence.”

Knowledge Ecology International said, in their opening statement, that “There is a disparity between the lofty language in this hall, and the efforts to narrow user rights taking place downstairs, in the closed meeting.” The representative deplored that deaf persons are not part of potential beneficiaries, as well as audiovisual works, due to what he characterized as motion picture lobbying efforts. Exclusions, which he called “shameful for a UN body.”

He said fair use and fair practices are important for publishers, sighted persons and for blind persons. According to him “there are efforts to expand the 3-step test for blind persons in ways that exceed its scope for sighted persons,” and “efforts to create all sorts of new treaty rules that make the exceptions narrow, complex and difficult and costly to use.”

Blind Person Explains Hurdle Due to Lack of interoperability

A representative of the Civil Society Coalition who spoke, said his name is Marcus Low from South Africa, blind since the age of seven. Throughout his life, he said, accessing books has always been a struggle, in particular at university. “I often did not have the books I needed,” he said, preventing him from performing to his full ability.

“There are things that we can’t fix about disability,” he said, but books are something that can be fixed. In 2013, he went on, accessing books remains a struggle. A few months ago, in the context of his work in public health, he needed to read a book called Reputation and Power:Organizational Image and Pharmaceutical Regulation at the FDA.

“I had to search for a very long time” before finding a relatively accessible book, he said. The book he found online could only be read with a particular software, he said. With this software, he met all kind of hurdles such as being unable to quote a paragraph, forcing him to read the same page several times to get to the desired paragraph to be able to quote it.

“This book was commercially available,” he said, “and I am very concerned that if we set the ball for commercial availability that low we are not really going to solve any problems.” Commercial availability is a key issue under debate at this week’s negotiations.

“I am firmly of view that we should not have commercial availability in the treaty but if for some reason it is a compromise” that delegates have to make, safeguards need to be built in “to protect people like myself and that could be things like interoperability,” he said. Interoperability means the ability to read text with various devices and various types of software, he explained, which would have solved his problem in the example he used.

Furthermore, he said “we increasingly see use of audiovisual materials in classrooms and lecture halls, and online learning and yet in the last six months audio materials have disappeared from the treaty.”

“Why,” he asked, “why should blind people not have access to these new forms of learning? Why?”

“The treaty has the potential to change my life and the lives of millions of blind people, has the potential to dramatically expand educational and professional prospects, but if becomes as bloated and as weakened as it is threatening to be, it will be of little or of no value.”

“If that happens Marrakesh will be remembered as our collective failure to do what’s right,” he concluded.

Bookshare Warns Against Needless Added Costs

Benetech, which operates Bookshare, a digital platform providing books to visually impaired people, said in its opening statement that the non-profit offers 197,000 books available in the US and that Bookshare servers 250,000 people, mainly in the US but also in 40 other countries.

“Our library is made possible both by a domestic copyright exception that makes it possible for us to add any book requested by a blind person to our library, as well as strong cooperation with publishers who provide many of their books directly to our library for free, including the rights to serve people in certain other countries,” he said.

“The digital nature of our work makes it cost effective to serve many people without spending a royal treasury,” he said, explaining “We provide library services in rich countries for US$75 per year per person. In the developing world, we charge roughly US$10 per year, subsidizing this cost in solidarity.”

“As you devise the treaty, please realize that any procedures that needlessly add costs to the inexpensive provision of accessible books will effectively result in denial of access,” he pleaded. “We don’t want procedures that make providing a book in a developing country to be more expensive than in our home country.”

Industry Keen on Including Three-Step Test Reference

The International Federation of Reproduction Rights Organisations (IFRRO), in its opening statement said “a simple and clear inclusion of the ‘three-step test’, as expressed in all copyright-related treaties of the past four decades, is the easiest and most effective way to remove any doubt about the treaty’s compatibility with the international copyright framework.”

The so-called three-step test, which places conditions on the use of exceptions and limitations to copyright, has been widely discussed without conclusive solutions (IPW, WIPO, 14 June 2013).

IFRRO, as well as other copyright holder representatives, such as the Motion Picture Association, said the treaty should not include “fair use”, which “is not defined in international law.”

The treaty, IFRRO said, “must not discourage the fairest and fastest route to the widest possible range of accessible works: access provided by authors and publishers…. Exception should only apply where the market fails, and not undermine the practical solutions that are already being explored and implemented in developing as well as in developed countries.”